In 2004 the then Parliamentary
Joint Committee on ASIO, ASIS and DSD (PJCAAD) conducted a review of the operation, effectiveness and
implications of Division 3, Part III of the
Australian Security Intelligence Organisation Act 1979 (‘the
Act'). The provisions empower ASIO to obtain questioning and detention
warrants in relation to persons believed to have information about
terrorist offences.This review was
legally required under a clause included in the Australian Security
Intelligence Organisation Amendment (Terrorism) Act 2002.

AMCRAN
submitted that Division 3 be allowed to lapse on 23 July 2006.
Acknowledging that it may be difficult for the Committee to recommend
the excision of Division 3 altogether, AMCRAN made the following key
recommendations:

Recommendation
1: In view of the uncertain constitutionality as well as the
broad basis for these provisions, the detention and questioning
powers under Division 3 should be allowed to lapse on 23 July 2006.

In
the alternative, that substantial changes to the Criminal Code are
made to limit the potential reach of the powers i.e. by delimiting
the definition of ‘terrorism' that is the basis of the
detention and questioning powers.

Recommendation
2: ASIO's detention and questioning power should be
allowed to lapse on 23 July 2006, as this appears to be outside of
ASIO's charter. Once a person is questioned and has provided
the information requested by ASIO, he or she should be released, and
should not be held.

In the alternative, only people
who are suspected of having committed an offence should be detained.
Further, it should not be sufficient grounds that a person "may"
do something in violation of S34F(2A), but that they are "reasonably
likely" to do so.

Recommendation
3: Should ASIO's detention and question powers be not
removed, ASIO must only be able to detain people for a period of
less than, or at least equal to, the maximum period of time that the
AFP can detain a person under suspicion of having committed a crime,
i.e. 12 hours for normal offences and 24 hours if they are suspected
of involvement in a terrorist offence.

Recommendation
4: That the provisions for strip searching be tightened, and the
police officer must provide evidence to the prescribed authority as
to why he or she believes the detained person may be in possession
of a sizable item that could not be detected by an ordinary search
or the use of widely available equipment such as metal detectors or
infrared cameras.

Recommendation
5: That the ‘secrecy offences'-such as those
contained in s34VAA which make it an offence to disclose that a
questioning/ detention warrant has been issued-be removed from
the Act

Recommendation
6: That another review of ASIO's detention powers be
conducted three years hence with specific allowance for those people
who have been detained and questioned to make submissions with the
assistance of legal practitioners and community groups.

Recommendation
7: That the Minister not be allowed to disclose matters relating
to the questioning or detention of a person publicly; that if the
Minister, or any member of the executive government do make
disclosures relating to the questioning or detention of an
individual, then the limits on disclosure are taken to be null and
void.

Recommendation
8: That the provisions that impose a penalty for not providing
information and reverse the burden of proof i.e. requiring the
defendant to prove they do not know something or do not
posses something, be removed.

Recommendation
9: That a person detained or questioned pursuant to either a
detention or questioning warrant must have access to a lawyer of
their choice, who must be present during questioning. Any contact
with the lawyer must not be monitored, and the lawyer must be free
to advise his or her client during questioning without fear of
removal.

Recommendation
10: That the power to confiscate a person's passport under
s 34JBA should be removed from the Act.

In the alternative, that the
passport of a person against whom a warrant is sought should not be
surrendered immediately on application for a warrant.

This submission was prepared by Agnes Chong and Waleed Kadous.

A community resource kit was produced by the UTS Community Law Centre to inform the community about the issues. AMCRAN created an Action Alert promoting the community to read the Kit and to make suubmissions. Over 90 submissions were received by the Committee. A full list of submissions is
available from the from the
Parliamentary
Committee website.

PJCAAD conducted public hearings as part of its Review. AMCRAN worked together with the National Association of Community Legal
Centres as well as the Public Interest Advocacy Centre in preparing for
our appearances, ensuring that we had a well-coordinated response. We
also provided background briefing and assistance to the Islamic Council
of NSW as well as the Islamic Council of Victoria to assist with their
appearances.

The transcripts of the appearances for the Inquiry are now available from the Committee website.

To access the transcript for the 6 June 2005 hearing including
appearances from AMCRAN, Islamic Council of NSW and the National
Association of Community Legal Centres, click here.

To access the transcript for the 7 June 2005 hearing including
appearances from Federation of Community Legal Centres (Vic) and the
Islamic Council of Victoria, click here.

On 6 June 2005, Agnes Chong and Waleed Kadous appeared before the then PJCAAD in its Review of Division 3 Part III of
the ASIO Act 1979 - Questioning and Detention Powers.

In their testimony, AMCRAN's representatives raised the following key points:

The definition of "terrorism" in the legislation is very broad.
Consequently, when something is related in any way to terrorism, a wide
swathe of powers become available to ASIO. ASIO was originally set up
as a policing institution, but was given police-like powers, such as
the ability to to detain someone for up to 7 days. It is not ideally
suited to this role.

The secrecy provisions of the ASIO act (which can lead to
someone being jailed for up to 5 years if they disclose "operational
information") were unworkable because the definition of "operational
information" was not clear and would lead to self censorship of
individuals affected. Prior to the appearance of AMCRAN, AMCRAN sought
guidance from the committee about whether people who were affected by
the secrecy provisions could actually make submissions or not. The
opinion was not conclusive.

AMCRAN gave examples illustrating the "coerced cooperation"
where ASIO says to people "we can do things the easy way or the hard
way." This has been a pattern of much of the legislation.

In the final report, PJCIS devoted a chapter examining the
disproportionate impact on the Muslim community, extensively quoting
from our submission and appearance, and recommended that
parliamentarians consider carefully their public statements in the
current inflamed environment. They accepted that the laws had a
disproportionate impact on the Muslim community.